1963
VICTORIA
REPORT
FROM THE
STATUTE LAW REVISION COMMITTEE
UPON THE
WRONGS ACT 1958 (PART Ill.)
TOGETHER WITH
AN EXTRACT FROM THE PROCEEDINGS
OF THE COMMITTEE
Ordered by the Legislative Assembly to be printed, 3rd December, 1963.
By Authority:
A. C. BROOKS, GOVERNMENT PRINTER. MELBOURNE
D.-No. 7.-11430/63.-PRIOll: ls.
EXTRACTED FROM THE MINUTES OF THE PROCEEDINGS OF THE
LEGISLATIVE COUNCIL.
TUESDAY, 3RD SEPTEMBER, 1963.
4. STATUTE LAW REVISION COMMITTEE.-The Honorable G. L. Chandler moved, by leave, That
the Honorables W. 0. Fulton,. W. R. Garrett, G. J. Nicol, A. Todd, D. J. Waiters and J. M.
Walton be members of the Statute Law Revision Committee, and that the said Committee have
power to send for persons, papers, and records.
Question-put and resolved in the affirmative.
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EXTRACTED FROM THE VOTES AND PROCEEDINGS OF THE
LEGISLATIVE ASSEMBLY.
TUESDAY, 3RD SEPTEMBER, 1963.
13. STATUTE LAW REVISION COMMITTEE.-Motion made, by leave, and question-That Mr.
Cochrane, Mr. Dunstan, Mr. Holland, Mr. Manson, Mr. Whiting and Mr. Wilkes be members
of the Statute Law Revision Committee ; and that the Committee have power to send for persons,
papers, and records. (Mr. Rylah)-put and agreed to.
REPORT
THE STATUTE LAW REVISION COMMITTEE, appointed pursuant to the provisions of The
Constitution Act Amendment Act 1958, has the honour to report as follows :l. By letter dated 31st May, 1962, the Honorable the Attorney-General requested the
Committee to examine the question of whether any and what amendments of the law should be
made with respect to the assessment of damages under Part Ill. of the Wrongs Act. On
9th August, 1962, a further letter requested the Committee's advice on an apparent anomaly whereby
it is considered that a person suing under Part HI. other than as executor or administrator is not
entitled to recover any sum paid out for funeral expenses, and also as to whether any further
legislative changes are thought desirable in the field of compensation to relatives.
2. Appended* to this Report are the Minutes of Evidence of the following witnesses, who
appeared before the Committee :Mr. J. J. Lynch, Parliamentary Draftsman ;
The Honorable Mr. Justice Smith, representing the Chief Justice's Law Reform
Committee; and
Mr. H. Lovat Fraser, representing the Life Offices' Association for Australasia.
Also appended* are the following :Copy of letter dated 23rd May, 1962, from the Secretary, Chief Justice's Law Reform
Committee to the Honorable the Attorney-General, together with copy of report
by its sub-committee ;
Letter dated 15th October, 1962, from the Secretary, Law Institute of Victoria ; and
Letter dated 29th October, 1962, from the Honorary Secretary, Victorian Bar Council.
3. Part Ill. of the Wrongs Act creates a cause of action for damages by the administrator
or executor of the person deceased, on behalf of a wife, husband, parent or child of the deceased,
where a person is killed by the wrongful act, neglect or default of another, and where, if death
had not ensued, the deceased would have had an action for damages in respect of his injuries.
A further provision enables such an action to be brought, in the event of there being no
administrator or executor, by the persons for whose benefit such an action would have been
brought had it been taken by an administrator or executor.
This provision aims at empowering the Court to assess damages based on the loss incurred
by relative dependants of the deceased, and it is understood that it is common in practically all
countries of the English speaking world. Such Acts, although having varied titles, are generally
known as "Lord Campbell's Act", after its sponsor who first introduced it into English law in
1846.
4. The Chief Justice's Law Reform Committee has recommended a narrow amendment to
Part Ill. to exclude from the assessment of damages to be awarded to a widow, the consideration
of the possibility of the granting of a widow's pension. This· has already been done in a number
It was stated that, in practice, usually such a
of the similar enactments already referred to.
consideration does not have any effect on the amount of damages ultimately awarded, because
normally the amount awarded is large enough to disqualify a widow from a pension at the
outset under the means test. Also, under the appropriate Commonwealth Act, the granting of
a widow's pension is discretionary, and although it may be said the discretion is usually exercised
in favour of a widow who falls within the requirements, the language of that Act nevertheless
leaves the position in doubt, as well as expressing further provisions to enable the suspension or
reduction of a pension if thought desirable.
Thus there are powerful reasons why a tribunal is inclined not to attach too much weight
to the claim to a pension when assessing damages. Added to these is the practical difficulty of
directing a jury to undertake a complicated calculation of the reduction to damages in respect of
the chance of a widow obtaining a pension. The consideration of a pension must also take into
account the Jikelihood of a widow obtaining employment, if so, for how long, and her earnings
and their effect under the means test.
5. Further, an anomaly would appear to exist following a decision in the High Court that
where a person is injured and sues for damages, the consideration of the fact that he is in receipt
of an invalid pension-or is likely to get one in the future-shall not be taken into account
when damages are being assessed, on the basis that the pension is intended by Parliament to be
an assistance to the person injured, and not as an aid to the wrongdoer, or the insurance company
which has to pay the damages.
• Minutes of Evidence and Appendiee!l not printed.
4
6. The Committee agrees that the present necesssity to take widows' pensions into
consideration when assessing damages is fraught with uncertainty and guesswork, and recommends
that, in view of the practical difficulties faced by juries, and the assurance that such a consideration
is unlikely to materially affect the amount awarded, the possibility of the receipt of a widow's
pension should not have a bearing on the assessment of damages.
7. The Committee turned its attention to the more general question of whether any, and
what other matters should not be taken into account in awarding damages under Part Ill.
Many of the Australian States have listed in this regard a series of Acts under which pensions
are payable, and stated that these will not be taken into account. Other comparable statutes
have gradually added further exclusions, and New Zealand has provided that gains shall not be
taken into account at all, and that damages shall only be assessed on the basis of the benefits which
have been lost.
8. The view was expressed that the trend of amendments which have widened the field of
exclusions in the various statutes ha.s been contrary to the original intent of Lord Campbell's Act.
Primarily, this Act supposed that suitable provision should be made for dependants of a person
who was wrongfully killed, so that they were no worse off than if that person had survived.
However, the Legislature of Victoria has seen fit to break away from this tradition by excluding
gains made by way of a contract of assurance or insurance, giving recognition to the contention
that the dependants of a person who has provided by those means for the welfare of his family
should not be at a disadvantage by receiving a lesser award of damages. Consequently, it may
be said that recognition was given to the view that a wrongdoer should not have the advantage
of having to pay less damages th~m would be the case if the deceased had not made suitable
provision by assurance or insurance.
9. The Committee agrees that there are to-day a number of diversified means whereby a
man may provide security for thos.e who are dependent upon his assets and earnings, and that
it is anomalous that the dependants of those whose benefits are secured by contracts at present
within the ambit of the Act should be in a better position than the dependants of others who
secured their benefits by other means.
Many superannuation and pension schemes now
operative are associated with policies of assurance, and it could be that every type of such
scheme would have to be tested by extensive litigation before the extent of the exclusion now
operative would be settled.
10. The Committee adopts the view that the thrift of a man wrongfully killed should not
be construed as an advantage to the wrongdoer, and that if it is impossible to maintain an exact
balance of fairness between the wrongdoer and the dependants of the deceased, then any benefit
should rest on the side of the dependants. It seems logical to the Committee that gains accruing
to the dependants of a deceased person which have been accelerated by a wrongful act should
not be taken into account when a.ssessing the benefits lost to such dependants.
11. It is recommended that Part liT. be amended to provide that the Court shall not take
into consideration when assessing damages any gain whether to the estate of the deceased person
or to any dependant that is consequent upon the death of the deceased person.
12. With regard to the recovery of funeral expenses, it is stated that legal practitioners
hold the view that such expenses !~annot be recovered by a person who sues other than in the
capacity of executor or administrator. This stems from the fact that a specific right of recovery
is included in section 29 of the Administration and Probate Act 1958 only in respect of the personal
representative when he sues in a r1~presentative capacity for the benefit of the deceased person's
estate, and because of this specific reference, it is thought to be inferred that such a right does
not reside in any other person.
13. Section 29 negatives the Common Law rule and provides for the survival of actions
against or for the benefit of an estate of a deceased person, and allows for a sum in respect of
funeral expenses to be awarded where it is found that death resulted from the negligence
complained of. In contrast, a Wrongs Act claim does not depend on any notion of survival, but
is for damages proportioned to the injury resulting from the death to the parties for whom and
for whose benefit the action is brought. It could well be said that where one of such parties
has paid funeral expenses, such monetary loss is an injury which has resulted from the death.
14. The Committee doubts whether the reference in the Administration and Probate Act
has any relation to the interpretation of the Wrongs Act. Such a specific power was clearly
necessary in actions under the Administration and Probate Act since the survival of an action
could never have included the right for a deceased person to recover his own funeral expenses.
However, because many actions under the Wrongs Act are initiated by a widow or parent, and
not by an administrator or executor, the Committee believes it preferable to put the matter beyond
doubt by inserting a provision to permit a dependant who has paid or incurred liability in respect
of the funeral expenses of the dec1~ased, to recover them as part of the award in a claim under
Part HI.
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It is further recommended that any reasonable cost of erecting a headstone or tombstone
over the grave of the deceased, or the provision of a comparable memorial in the case of a
cremation, may be recovered in the award.
15. The Committee adopts the reasoning that medical expenses, if incurred by the claimant
party, might also be construed as being an injury resulting from the death, and believes that an
amendment should be made to Part Ill. to ensure that in these circumstances they may form
part of the award.
16. In 1940, the South Australian Parliament amended its Wrongs Act (now appearing
as sections 23a, 23b and 23c of the Wrongs Act, 1936-1959) to make provision for awarding a
payment by way of " solatium " to a parent or spouse whose feelings had been outraged by a
fatality, but where there is no pecuniary loss. Such payment is in that State limited to £700
for loss of a spouse and £500 for loss of a child, and the Committee gave consideration to the
desirability of a similar measure being introduced into the Victorian Act.
17. The Committee sees merit in the inclusion of a " solatium " provision. It believes
that, even if there is no financial loss sustained, a considerable burden is placed on the family of
a person wrongfully killed. In the case of the loss of a spouse, the remaining partner is not
only deprived of the society of the deceased person, but often has to undertake the task of caring
for any children unaided. The children themselves are placed at a disadvantage by being put
in the position of having to mature without the guidance, help and comfort that two parents can
offer.
It is felt that considerations such as these should be worthy of some recognition, and as
they may be said to be a direct effect of the act of the wrongdoer, the Committee believes that
it would not be out of keeping with the Wrongs Act to include a provision for "solatium"
payments to a parent or spouse along the lines of the South Australian legislation. This step
is commended.
18. In estimating the loss to the dependants from the cessation from the earnings of the
deceased, the question of whether the effect of income tax on those earnings should be taken into
consideration arises. In this regard the Committee's attention was drawn to the case of British
Transport Commission v. Gourley (1956) A.C. 185, which, although not itself under Lord Campbell's
Act, is considered to be applicable to this branch of the law. In Gourley's case, the House of
Lords reversed the decision of the Court of Appeal and held that the damages awarded should be
reduced by the effect of taxation, on the basis that if the tax liability were not taken into account,
the award would in effect be more than the loss sustained.
19. The question of taxation was subsequently considered by the English Law Reform
Committee and the Law Reform Committee for Scotland, and although both of these Committees
recommended that there be no change in the law-that is, that the decision in Gourley's case
should remain-there was substantial dissent in each report.
20. Whilst the Committee received no detailed evidence on this aspect, it considers that
the effect of an award under Part Ill. should be to compensate the dependants for monetary losses
suffered, and it would be unrealistic to make such an award without having first taken into
consideration what effect taxation would have had in the particular circumstances.
Committee Room,
27th November, 1963.
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EXTRACT FROM THE PROCEEDINGS OF THE COMMITTEE.
The following extract from the Minutes of the Proceedings shows Divisions which took
place during the consideration of the draft Report.
WEDNESDAY, 27th NOVEMBER, 1963.
Paragraph 17.
" The Committee expresses doubts as to whether this matter should properly be included in the
Act. It was stated that the enactment of such a provision would put a premium on good acting, the
danger being that the person who is ultimately compensated for suffering may not be the one most hurt,
but merely the one who protests the loudest.
Having in mind that it was laid down in England very soon after the passing of Lord Campbell's
Act that all that should be taken into account is the financial asped, and that no consideration of
deprivation of society or suffering was proper, and that this view has been maintained ever since, the
Committee believes that a departure from this accepted principle should not be made in Victoria."
Question.-That paragraph 17 stand part of the Report-put.
Amendment proposed.-That all the words after " The Committee " be omitted, with a view to
inserting-" sees merit in the inclusion of a 'solatium ' provision. It believes that, even if there is no
financial loss sustained, a considerable burden is placed on the family of a person wrongfully killed.
In the case of the loss of a spouse, the remaining partner is not only deprived of the society of the
deceased person, but often has to undertake the task of caring for any children unaided. The children
themselves are placed at a disadvantage by being put in the position of having to mature without the
guidance, help and comfort that two parents can offer.
It is felt that considerations such as these should be worthy of some recognition, and as they
may be said to be a direct effect of the act of the wrongdoer, the Committee believes that it would not
be out of keeping with the Wrongs Act to include a provision for ' solatium ' payments to a parent or
spouse along the lines of the South Australian legislation. This step is commended."
Question.-That this amendment be agreed to-put.
The Committee divided.
Noes 4.
Ayes 7.
Hon. W. R. Garrett
Mr. Holland
Mr. Manson
Hon. A. Todd
Hon. D. J. Walters
Hon. J. M. Walton
Mr. Wilkes
Mr. Cochrane
Mr. Dunstan
Hon. G. J. Nicol
Mr. Whiting
And so it was resolved in the affirmative.
Question.-That paragraph 17 as amended stand part of the Report-put.
The Committee divided.
Ayes 7.
Noes 4.
Hon. W. R. Garrett
Mr. Holland
Mr. Manson
Hon. A. Todd
Hon. D. J. Waiters
Hon. J. M. Walton
Mr. Wilkes
Mr. Cochrane
Mr. Dunstan
Hon. G. J. Nicol
Mr. Whiting
And so it was resolved in the affirmative.
BY Authority: A. C. BROOKS, Government Printer, Melooutne.